Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns

Friday, March 20, 2009

'Google''s numbers on 'bogus' DMCA notices: a closer look

One of the great things about blogging is the ready availability of primary documents that can easily be linked to. Readers don't have to trust the blogger's characterizations of what someone else said; they can just click on the link to the article, document, court opinion, blog post, etc., and see if the original blogger accurately described the source material, or they can just read the whole thing to get additional detail. This phenomenon is also a good check on bloggers; at least in theory, they won't just write things that are at odds with what the primary documents actually say.

Well, at least that's the way it's supposed to work. But, unfortunately, not always. Here's what I mean: New Zealand is debating a proposed "graduated response" law that would force ISPs to terminate the accounts of repeat copyright infringers. As part of the debate, Google submitted comments to the Telecommunications Carriers' Forum, an association of New Zealand ISPs. Here's how Techdirt characterized the filing:

Some entertainment industry lawyers have been going around lately, pitching a fable that the DMCA isn't really that bad, since bogus takedown notices are somewhat rare. However, some new evidence from Google suggests quite a different story. Reader Slackr points us to some news about Google filing a comment on New Zealand's proposed new copyright law that would kick file sharers offline based on accusations rather than convictions.... While it's interesting alone that Google is participating in the process, even more interesting is what it has to say about its experience with DMCA takedown notices:

In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.

Google's point is that these types of laws are widely abused, and setting up such a system where punishment is handed out without any real due process is going to lead to an awful lot of mistakes. But, these stats are worth discussing just for what they say about the DMCA itself, and that myth that the process is rarely abused. From the numbers Google has seen, it's quite clear that the DMCA isn't just abused, it's regularly abused in ways that are both anti-competitive and chilling.

Sounds interesting. So what's the "new evidence from Google"? Well, Techdirt doesn't link to Google's filing. Instead it just links to an article from New Zealand PC World, which doesn't tell us much.

Curious, I took a few minutes to do some heavy-duty original research (i.e., a few Google searches), and guess what I found? That "new evidence from Google"? It's: 1) not "new"; 2) not "from Google"; and 3) doesn't remotely prove the point for which Techdirt (and Google) cites it.

So what about the actual claims that Techdirt relies on in its post? The first is that "more than half (57%) of the takedown notices [Google] has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors." But what the Urban/Quilter article actually says (and which Techdirt fails to note) is that the 57% refers only to requests forsearch engine resultlink removals. This has virtually nothing to do with entertainment companies sending notices about unauthorized copies of their works (which is what graduated response is all about). As the exec. summary itself says (p.10), "entertainment companies...choose not to send search engine complaints." Having been involved in the takedown process at a major entertainment company, I can confirm that is correct. (And the only time I ever saw one entertainment company ever send a takedown notice on a competitor's work was the rare instance of a clerical error or confusion about copyright ownership.)

The other claim that Techdirt cites is that "over one third (37%) of notices were not valid copyright claims." This misstates what the underlying report says. I'm not sure where the "37%" figure comes from; I can't find it in the executive summary that the Google filing cites (or in the full article). (The closest I could find was 30%. See p. 12 of the exec. summary.) Moreover, the report does not say that the relevant DMCA notices "were not valid copyright claims." Rather, it refers to claims about which the authors (who are quite unsympathetic to copyright owners and favor an expansive view of fair use) had "significant questions....where a genuine dispute related to copyright infringement or defenses would clearly arise." (pp. 11-12). There's a very...signficant difference between "not valid" and "significant questions [as determined by academics unsympathetic to copyright owners]."

And since Techdirt is focused on demonstrating that "entertainment industry lawyers" are telling "fables," let's examine the data in the Urban/Quilter article to see how many of the relevant Google notices were actually sent by these alleged fabulists. According to the full article (p. 658):

Out of all § 512(c) notices in either the Google or self-reported sets (303 in total), 10 relate to movies; 7 to music; 7 to games; 63 to software; 37 to photos; 8 to other graphics; 166 to text; 5 relate to whole websites; and 4 were undefinable.

That's right: the study only looked at 10 "hosting" takedowns to Google or other sites about movies, and 7 about music. As the article candidly says about the music notices (p. 659): "This is obviously far too small a sample to be statistically relevant, and almost certainly reflects selection bias relating to media coverage of the relevant subject matter." And how many of the movie notices were sent to Google? According to the article (p. 659): "Of the ten § 512(c) notices sent by companies in the film industry, only two were sent to Google." Two! One doesn't need to be an expert statistician to know that we shouldn't be drawing conclusions from such numbers. Much more about the selection bias and other potential problems with the Urban/Quilter study at Scrivener's Error.

Another important point: when "entertainment industry lawyers" (like yours truly) speak about DMCA notices to Google (and the relatively small number of bogus ones), they're usually referring to notices to YouTube (which is owned by Google). Google didn't acquire YouTube until late 2006 -- well after the Urban/Quilter study. The study, in fact, does not refer to YouTube at all. While I don't have exact numbers, I am confident that the vast majority of motion picture industry DMCA notices to Google over the past several years have in fact been notices to YouTube. (I don't know enough about DMCA notices to Google by the music industry to say how those numbers break down.)

The bottom line: the numbers cited by Google (and then repeated by Techdirt) say virtually nothing about the actual kind of notices most relevant to a "graduated response" program like New Zealand is considering: notices about movies and music. And the lesson: look at the underlying documents, not simply partisan (mis)characterizations of them.

(And for the umpteenth time: I am not saying that bogus DMCA takedown notices don't exist. They do.)

12 comments:

As the former owner of a site that got a decent number of takedown requests, I can tell you that Google's numbers are actually too generous. I think we only ever got one request that was for real. The rest were random complaints and things that amounted to cries for help. For example, ESPN submitted a takedown request for a link to their site. A musician who had been misattributed submitted a takedown request for a song that he had nothing to do with. Etc.

What we really need to evaluate whether a graduated response program for ISPs in NZ (or elsewhere) will work on a large scale is some data on how it's working on the ISPs that have implemented such programs here in the US (where it has been done in cooperation with content owners, not by government mandate). I know of at least 1 ISP that has, but I have seen no public reports on how it's working out, including whether there have been significant numbers of allegedly false positives.

My small graphic arts development company sent Google four (4) separate copyright infringement notifications (I guess you could call them 'DMCA take-down notices', only they contained significantly more information about the quantity and origin of digtial illustrations and designs being pirated and "distributed" through Google).

Google did not act on any of the notices. In fact, in three out of the four cases, the original infringing web site removed the pirated images and Google continued to display and make the infrining images available from the Google servers long after they were taken down elsewhere.

Why don't more people report this kind of routine Google abuse? Have you read some of things Google sends to "Chilling Effects" just to try and scare away legitimate copyright owners from standing up for their rights in the digital world?

Needless to say, we quit sending Google such notices and now only deal directly with the infringing web sites.

In our view, the whole DMCA takedown process is routinely abused by Google, who, as we all should know by now, has as little respect for our copyight laws, and the copyighed works of talented digital artists, performers, photographers, programmers, and writers, in America, and elsewhere around the globe as well, as anyone on the planet.

I find myself completely ignoring anything Google, and some of its "copyleft" followers, have to say about copyrighted works or the DMCA. From my experience, none of it is "truthful".

Can you be more specific about the nature of the infringement, and what kind of notices you sent Google? Were you asking Google to remove search result links?

I can't say why Google "did not act on any of the notices" in your case. I believe Google does require that DMCA notices contain all the "magic words" and other info mandated by the statute. If some of that is missing, they won't remove the material (or link). While I agree with you that Google is not a big fan of strong copyright protection, in my experience they *do* act promptly to remove material (or links) upon receipt of a facially valid DMCA notice.

Mike Masnick is very fast to call the other side out for all sorts of apparent abuses and lies, and also very qucik to use his own shaky sources as the truth.

It's pretty easy to figure out that Mike makes a good living giving out these speeches and presentations at various events, he makes a living on his opinion, and has to do everything possible to maintain that angry copyright / patent fighter position. It's just really too bad that he gets caught out on the numbers like this.

Easily the most significant problem I have with most "website journalism" is that numbers/data are routinely spouted without any attempt to scrutinize them. Another significant problem is that most of these sites either link to a site providing the numbers/data or else utilize selective quotes. It appears as if skepticism of numbers/data propounded without independent verification is virtually non-existent. Numbers/data being so malleable, it is disappointing that they are typically being taken at face value.

While I have not read the article you cite (though I plan to do so), it does seem quite clear that you have expended much effort trying to "peer behind the curtain". If only this was the rule and not the exception...

George, when you say "we quit sending Google such notices and now only deal directly with the infringing web sites", the question is why you didn't do that in the first place. The search engine is just an access point for the host. You would never have accomplished anything by focusing on Google.

An informative article and thanks for that. I started a blog approx 4-5 months ago and so far have recieved 2 DMCA takedown notices both of which related to music that is freely available at archive.org to which I had posted links. I tried to contact google and needless to say never heard anything back.It seems to me that no one from the recorded music bodies in question had actually properly looked at my blog posts they just saw a certain band's name and had an instant knee jerk reaction.

It's hard to know exactly what happened in your case without more specifics. But a couple points:

1) I don't know about the specific music in your case, but the fact that the music you linked to was "freely available" on the Internet doesn't mean that it's not protected by copyright.

2) You say you "tried to contact google and needless to say never heard anything back." I don't think merely "contact[ing] Google" when you believe you were the subject of an improper DMCA notice will help you. You will have to send an actual DMCA counternotice:http://www.google.com/dmca.html#counter

In my experience, Google has always replaced material after receiving a counternotice (though it takes 10-14 business days).

Thanks. Here's the link: http://techdirt.com/articles/20090321/1321414205.shtml Techdirt now concedes that the "37%" number is wrong, that the "57%" is only about search engine link result links, and that the data is from academics (not Google). (This is all just "nitpicking around the margins," says Techdirt. I call it "getting the basic facts wrong.")

Moreoever, Techdirt completely ignores the (crucial) point that of the 37% (or 30%) of allegedly questionable notices noted in the underlying article, virtually none came from movie or music companies. Of course, if we want to evaluate a proposed graduated response program that will involve notices from music and movie companies about entire copies of their works, it's only fair to ask whether the data used to oppose the plan includes good numbers on that kind of notice. As I pointed out in my post, it doesn't.

Techdirt's claim that "link removal requests certainly would seem to represent a good proxy for DMCA takedowns" is flat wrong. As the Urban/Quilter article says (and as I pointed out above), entertainment companies don't even send such notices (except in rare instances). It's a huge -- and unjustifed -- leap from "non-entertainment companies send search engine result link takedowns on competitors (which we don't even know are justified or not)" to "entertainment companies will therefore send incorrect notices on entire copies of their works as part of a graduated response program."

Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

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About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

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